My Lords, the noble Lord, Lord Davies of Gower, who has great experience of these issues, spoke about our having thus far overlooked the dangers faced by undercover operatives. Little has been said about operational safeguards. Indeed, perhaps I may take this opportunity to mention that I was contacted by a noble friend this morning who emphasised the bravery of undercover operatives, who place themselves at considerable risk in many such situations.
The amendment highlights the limitations of the whole idea of granting pre-event immunity from prosecution within what the Government variously describe as criminal conduct authorisations that are tightly bound, specific, tightly drawn and within strict parameters. What the noble Lord, Lord Davies of Gower, has described is all too possible: that a CHIS—whether a highly trained agent, an undercover police officer or a 16 year-old child informant—encounters a situation that, even if foreseen as a possibility, the handler and authorising officer felt unable to authorise and grant immunity for in advance.
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I have previously described covert human intelligence sources being sent into uncertain, rapidly changing scenarios, almost always in uncontrolled environments where rescue is impossible, and often involving chaotic individuals. That describes in a sentence the sort of scenario that the noble Lord outlined. Imagine a 16 year-old involved in county lines. He has been sent to do drug deals hundreds of miles from where he lives and is caught selling a small quantity of drugs to a
user. He is recruited as a police informant but the police want to arrest those higher up the network. He tells them that his supplier is due to deliver a large quantity of drugs the next day and is persuaded to go back to the squat from where he is operating to await delivery. He is given a criminal conduct authorisation to hand over the cash that he was found with in exchange for the new supply of drugs. When his supplier arrives, he is not alone. He has another young member of the drug gang with him. The supplier says the teenager he is with has broken the rules of the gang and must be punished, and hands the CHIS a knife, ordering him to stab the teenage gang member in the leg. It is common practice for gang members to be “disciplined” in this way. The supplier says that he has his suspicions about the CHIS because he could not get hold of him yesterday. That was because the CHIS was in police custody. He has to prove that he is not a police informant by stabbing the teenager. The CHIS panics because he has not been authorised to stab anyone. When he refuses, his behaviour gives him away and he is fatally stabbed.
That is a realistic scenario. I am not sure that the wording of the amendment would cover such a situation. It does not avert or mitigate a threat to the physical safety of another person if the stabbing is carried out by the CHIS. In any event, how do you explain to a 16 year-old child what that means? However, if you explain that, whatever he needs to do to protect himself, provided it is reasonable, he is unlikely to be prosecuted, that is a much easier, simpler and more understandable instruction. The Government might say that actions beyond the precise definition of the CCA will still be looked at sympathetically by the prosecuting authorities, but try telling a 16 year-old, or a not very bright adult for that matter, “You have legal immunity provided you only do what the CCA authorises you to do but if you go beyond the CCA if you have to, you may not be prosecuted.” It makes the whole thing far more confusing and difficult to understand. If the Government are minded not to accept the amendment, can the Minister explain the difference between the police or the security services, without any judicial approval, granting immunity from prosecution by granting a CCA, and the police or the security services, without any judicial approval, granting immunity for something unforeseen but arguably necessary, after the event?
I turn to the extraordinary letter from the Minister, dated 3 December. It states that the Government’s approach is “not without precedent”. To say that the security services intercepting the communications of someone suspected of terrorism, having sought and secured prior authority from an investigatory powers commissioner and a Secretary of State, is equivalent to the police granting legal immunity to a criminal who is asked to commit a potentially serious crime that may seriously harm innocent people, with no prior approval of any kind outside of the police, is, frankly, preposterous.
I have a great deal of sympathy for the noble Lord’s amendment because it highlights the unworkability of granting immunity in advance through a criminal conduct authorisation. However, our position is that the police should not be allowed to grant legal immunity to commit crime or, indeed, to say that something that
clearly is a crime is no longer a crime—whether in advance or, as the amendment suggests, after the event. For that reason, we cannot support the amendment.